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August 1, 2005.


The opinion of the court was delivered by: TERRENCE McVERRY, District Judge


Before the Court for disposition are the following:
• MOTION FOR SUMMARY JUDGMENT (Document No. 19) filed by defendant Donzi's Bar, with brief in support (Document No. 20) ("Motion" and "Brief," respectively);*fn1
After considering the filings of the parties, the evidence of record and the relevant statutory and case law, the Motion for Summary Judgment will be granted in part and denied in part.


  This civil rights action arises out of events which occurred in the early morning hours of November 11, 2001. Plaintiff Michael Kossler ("Kossler") and his friend John Trelecki ("Trelecki") arrived at defendant Donzi's Bar ("Donzi's") at approximately 11:00 p.m. and "socialized, talked, walked around a little bit, maybe danced a little bit, [and] had a couple of beers . . ." Kossler depo. at 13. Defendant Steven Crisanti ("Crisanti"), a City of Pittsburgh Police Officer, was working an "off-duty" detail, or secondary employment position, at Donzi's. Crisanti depo. at 26, 30. With the exception of his official police baseball cap, Crisanti was dressed in his full police uniform. Id. at 85.

  Kossler and Trelecki left Donzi's at approximately 2:00 a.m. because Donzi's personnel "were asking anybody (sic) to leave." Kossler depo. at 13.*fn2 Upon exiting the bar, they walked up a ramp toward a parking lot. Id. at 14. Specifically, Kossler testified at his deposition that he and Trelecki were "at the top of the ramp where it turns into a sidewalk and there is a little landing area . . . you take two or three steps down, you are in the parking lot . . ." Kossler depo. at 17.

  Kossler and Trelecki were not yet in the parking lot when a fight broke out on the sidewalk at the top of the ramp. Id. at 17. When the fight started, Crisanti was standing on what he describes as an "island" in the parking lot located next to the entrance to Donzi's. Crisanti depo. at 80. What happened next is in dispute. Crisanti's version of the events is as follows:
There was, apparently, a fight at the top of the steps going down towards Donzi's. I ran over to break up the fight, and someone grabbed me from behind, twisted me around. That was Mr. Kossler. I looked him right square in the eye. I observed what he was wearing. I pushed him off me. I ran over to the fight.
Pltf's appx., ex. 3, p. 3.*fn3 According to Crisanti, the fight was broken up by Donzi's security personnel before he could reach the fight. Id. at 8-9.
  Trelecki, on the other hand, told a different story at his deposition:
[Crisanti] got in the middle of trying to — got in the middle of a couple of kids that were throwing punches and pushing each other, and it was just getting hectic because all the kids were starting to surround now, and it wasn't a one-on-one battle, it started to turn into more and more kids, escalating, getting involved in this.
I went over and smacked Officer Crisanti, tapped him on his back to tell him I was helping him out, trying to break up the kids so he didn't think he was by himself because I know him, he was a good friend.*fn4
Trelecki depo. at 19. Kossler maintains that he was not the one who touched Crisanti when Crisanti was running toward or attempting to break up the fight. Kossler depo. at 20-21, 27-28.
  What happened after the fight ended is also in dispute. According to Kossler:
Officer Crisanti approached us, you know, in a loud, screaming, irate voice, pointing his finger at me telling me next time I touch him I am going to jail and I shouldn't be grabbing an Officer.
* * *
Then he continued to kind of force me back where I was concerned about my face. . . . I thought I was going to get physically punched or slapped or something, and I was backing up.
And at one point, I believe he touched my nose. So I told him, I just had sinus surgery, I just had surgery on my nose, please, get your hand out of my face.
* * *
And then Officer Crisanti maced me.
Kossler depo. at 27-28. Kossler also testified that he moved Crisanti's hand away from his own face just before being sprayed by Crisanti. Id.
  Crisanti's account of what occurred differs significantly from what Kossler said:
I approached Kossler to ask him and then explain to him not to ever touch me or another police officer again, and to find out why he had done such a thing. He became irate. He came at me. I put my hand up and pushed him away.
* * *
He bent my middle finger and forefinger completely back on my left hand.
* * *
I tried to pull my fingers free. I had to reach underneath, with my right hand, and grab my OC and spray him. At that time he released my hand.
Motion, ex. I, p. 2. Kossler was arrested and charged with aggravated assault and public intoxication. Complaint at ¶ 11. In a non-jury trial before the Honorable Robert E. Colville, Kossler was found not guilty of aggravated assault and public intoxication, but was found guilty of the summary offense of disorderly conduct and fined one hundred dollars. Crisanti's Answer at ¶ 13; Motion, ex. C, p. 4-6. Judge Colville also opined on the record that Crisanti "acted reasonable." Motion, ex. C, p. 4.

  With respect to Donzi's motion, the primary dispute involves the parameters of "secondary employment" by City of Pittsburgh Police Officers. Essentially, the issue is whether Crisanti was, at the time of the incident, acting as an employee/agent of Donzi's, as a City of Pittsburgh Police Officer, or, perhaps, in both capacities. At the time of the incident, "secondary employment" by City of Pittsburgh Police Officers was governed by Pittsburgh Bureau of Police Order Number 29-1 ("the Order"). Pltf's appx., ex. 7, p. 1; Crisanti depo. at 182-83. "It is the policy of the Pittsburgh Bureau of Police to permit members to engage in secondary employment, whether compensated or uncompensated, within the guidelines set forth in [the Order]" Pltf's appx., ex. 7, p. 1. "Secondary employment" is defined as "[a]ny employment that is conditioned on the actual or potential use of law enforcement powers by the police officer employee." Id. City of Pittsburgh Police Officers, "while engaged in secondary employment, will conduct themselves as though they were on duty, and will be subject to all departmental rules, regulations, policies and procedures set forth by the Pittsburgh Bureau of Police while engaged in a secondary employment capacity." Id. Approval for secondary employment must be obtained by individual officers from the Pittsburgh Bureau of Police and is contingent upon the officer's "good standing" with the Pittsburgh Bureau of Police, as well as other qualifications not germane to this action. See id. at 1-2.

  The Order also provides that "[a]ll members engaged in secondary . . . employment must recognize that their primary duty, obligation and responsibility is to the Pittsburgh Bureau of Police," and that "[m]embers are subject to call at all times for emergencies, special assignments or extra duty, and no secondary or outside employment may infringe on these obligations." Id. at 2. At his deposition, Crisanti testified that his interpretation of his duties pursuant to the Order was that "if someone is committing a crime, and I see it, or someone requires police response, I have to respond. I have to act in a manner as a police officer." Crisanti depo. at 183. Crisanti responded affirmatively when asked whether he would "be responding on behalf of the City of Pittsburgh Police Department," and he added that "if I [were] working a detail and there is a shooting up the street in another bar and they see (sic) officers need assistance, I got to go." Id. at 183-84.

  The parties dispute the scope and legal ramifications of Crisanti's duties during "secondary employment" at Donzi's. Crisanti testified at his deposition that he understood his duties for Donzi's to be as follows:
Q: Tell me what duties you understand you were to be performing for Donzi's.
A: My duties are as a — for crowd control, a visible deterrant (sic), and, if need be, if someone does do something that would force me to have to arrest them, then so be it. I mean, I have to do that. Q: Okay.
A: But the primary function is security and crowd control.
* * *
Q: As part of those duties, was it explained to you that they wanted you to stand near the entrance of Donzi's as people are coming into Donzi's?
A: Yes. And that is, A, for the visible deterrant (sic), but also is, the purpose is to serve so people know where we are at.
On many occasions . . . our function is not just for . . . law enforcement, it is — I have administered first aid on several occasions down there for people who had been falling off things and cracking their skull . . ."
Crisanti depo. at 188-89.

  After his state court charges were resolved, Kossler filed the instant lawsuit against Crisanti and Donzi's in which he brings claims for excessive force, false arrest and malicious prosecution pursuant to 42 U.S.C. § 1983 and the Fourth Amendment. Complaint at ¶ 1; Reply at ¶ 1. The Complaint also states common law claims for assault and battery, false arrest and malicious prosecution. Additionally, paragraph fourteen of the Complaint appears to state a claim against Donzi's for failure to train. Some of the language in Donzi's Reply indicates, by omission, that no claim for failure to train is being advanced, but the Counterstatement of Facts set forth in Donzi's Reply includes facts which are clearly relevant to a claim for failure to train. ...

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